[J-95-2020]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

ANTHONY SHAW,

Appellee

:

:

:

:

:

:

:

:

:

:

:

:

:

No. 21 MAP 2020

Appeal from the Order of the Superior 

Court dated 7/3/19, reconsideration 

denied 9/11/19, at No. 1573 EDA 2018 

reversing the PCRA order, vacating the 

judgment of sentence of the Delaware 

County Court of Common Pleas, 

Criminal Division, dated 4/25/18 at No. 

CP-23-CR-0006238-2010 and 

remanding for a new trial

SUBMITTED: September 17, 2020

OPINION

CHIEF JUSTICE SAYLOR DECIDED: March 25, 2021

In light of the statutory, one-year limitation on the time during which a petition for 

relief from a judgment of sentence may be filed under the Post Conviction Relief Act, 

difficult issues have arisen regarding the extent to which a petitioner’s rule-based right 

to effective counsel in post-conviction matters may be vindicated. Presently, the 

Superior Court determined that certain redress may be afforded during post-conviction

appeals, and the Commonwealth challenges this ruling.

I. Background

On November 30, 2009, apparently in the 7:00 p.m. to 7:20 p.m. timeframe, 

Appellee shot the victim, Alex Adebisi, at the victim’s apartment in Darby Borough, 

which is near Philadelphia. Subsequently, Appellee was tried jointly with a co-
[J-95-2020] - 2

perpetrator for attempted murder and other offenses. At the pretrial stage, Appellee’s

counsel filed a notice of alibi under Rule of Criminal Procedure 567(A). Under this rule, 

a defendant who intends to present an alibi defense at trial must file a notice containing:

specific information as to the place or places where the 

defendant claims to have been at the time of the alleged 

offense and the names and addresses of the witnesses 

whom the defendant intends to call in support of the claims. 

Pa.R.Crim.P. 567(A)(2).

The notice submitted by Appellee’s counsel identified two alibi witnesses, April 

Wynn and Devon Crowley. Further, the notice provided:

The Defendant contends that all the time of the commission 

of the alleged crimes, he was with April Wynn, who resides 

at [a specific address in Philadelphia] and Devon [Crowley], 

who resides at [another specific address in Philadelphia].

 * * *

The substance of the testimony of April Wynn and Devon 

[Crowley] will be that at the time of the commission of the 

alleged crimes, Defendant Anthony Shaw was with them and 

they were in Philadelphia and not in Darby at 127 North 

Front Street at the time of the alleged assault upon [the 

victim].

Notice of Alibi Defense dated Apr. 29, 2011, in Commonwealth v. Shaw, No. 6238-10 

(C.P. Delaware), at 1-2 (emphasis added).

At trial, however, only Ms. Wynn was called by the defense to testify concerning 

the alibi. She stated that Appellee arrived at her house on November 30 in the 5:30 

p.m. to 6:00 p.m. timeframe. See N.T., Sept. 14, 2011, at 154. Further, she attested 

that the pair rode in an unlicensed cab to Willow Grove Mall in Philadelphia’s northern 

suburbs, arriving around 7:00 p.m. -- i.e., as the crimes on the west side of Philadelphia 

in Darby were unfolding -- returning to her home after 11:00 p.m. See id. at 154-55.
[J-95-2020] - 3

During her cross-examination of Ms. Wynn, the prosecutor referred to the notice 

of alibi to impeach the veracity of Appellee’s alibi. Trial counsel objected, as follows:

Your Honor, the Commonwealth apparently -- is attempting 

to impeach this witness with my alibi notice. It’s not her 

statement. It’s not -- and had the Commonwealth 

interviewed these people the -- I think what the 

Commonwealth's trying to show is that these two people 

were together and that's not what we’re saying at all.

N.T., Sept. 14, 2011, at 170 (emphasis added).

1

 The trial court overruled this objection.

The prosecutor then asked Ms. Wynn: “[W]ould it surprise you that this notice 

says that Anthony Shaw was with you and -- and Devon [Crowley] and that you all were 

in Philadelphia” at the time of the shooting. Id. at 175 (emphasis added). The witness

replied that Ms. Crowley was not present with her and Appellee in the relevant time 

period. See id. at 175-76.

After the Commonwealth concluded the cross-examination, Appellee’s counsel 

asked for a sidebar conference and moved for a mistrial, and the following interchange 

ensued:

[COUNSEL]: Your Honor, I just want to put on the record 

that the -- what was just done was improper. The Court’s 

ruling was an egregious error and it results in a mistrial --

and -- and [I am] moving for a mistrial to this extent, Judge. 

Under the rules -- I complied with the rules. I gave the alibi 

notice. Now, had the Commonwealth done their job and 

sen[t] investigators out to talk to both of these people, it 

would be clear that they weren’t all together at the same 

time. I prepared that. She didn’t prepare it, okay. And she’s 

 

1 From this point forward -- and until he was confronted with the specific terms of the 

alibi notice at a post-conviction hearing -- trial counsel adhered to misunderstanding that 

the alibi notice did not reflect what it said, namely: “The substance of the testimony of 

April Wynn and Devon [Crowley] will be that at the time of the commission of the alleged 

crimes, Defendant Anthony Shaw was with them[.]” Notice of Alibi Defense dated Apr. 

29, 2011, in Commonwealth v. Shaw, No. 6238-10 (C.P. Delaware), at 1-2.
[J-95-2020] - 4

not responsible for what it says, okay. Now, she gives her --

she was -- the reason her name is on there is so she could 

offer her portion of the testimony. . . .

THE COURT: The testimony given by the witness would 

appear to be a contradiction of the alibi witness [notice] that 

you supplied; and to that extent the Commonwealth’s 

attorney was entitled to explore it.

Id. at 178-79 (emphasis added).

In his closing remarks, trial counsel discussed the notice of alibi extensively, 

taking responsibility for having drafted and submitted it and explaining that, because 

witnesses had made statements indicating that the perpetrators were in Darby during 

the afternoon on November 30, he had identified Ms. Crowley to attest to Appellee’s 

whereabouts at that time. In this vein, counsel advised the jurors:

So one part of the day we had one witness. The latter part 

we had a second witness, okay. And what the alibi notice 

doesn’t say that we were altogether [sic]. . . . [Ms. Wynn 

has] just testified as to where [Appellee] was from 5:30 to 

around 11:30, midnight, okay. If Ms. [Crowley] were called, 

again, we didn’t have to call Ms. [Crowley] because they 

concentrated their portion of the case on the evening part of 

what happened, the shooting itself. But had they got into the 

other evidence and it was necessary, Ms. [Crowley] would 

have been available.

Id. at 218-219 (emphasis added).

For the prosecutor’s part, she succinctly highlighted to the jury that:

There was no Devon [Crowley] with [Appellee and Ms. 

Wynn] at the time of the commission of the crime. And I 

would suggest to you that [Appellee] was not at the Willow 

Grove Mall or in some hack on his way to the Willow Grove 

Mall. He was in [the victim’s] apartment, holding a gun[.]

Id. at 252.
[J-95-2020] - 5

After Appellee was convicted and an unsuccessful direct appeal was concluded, 

see Commonwealth v. Shaw, 105 A.3d 794 (Pa. Super. 2014) (per curiam), appeal 

denied, 630 Pa. 736, 106 A.3d 726 (2015), he lodged a petition under the Post 

Conviction Relief Act. See 42 Pa.C.S. §§9541-9546 (the “PCRA”). In the proceedings

before the post-conviction court, Appellee pursued a claim that his trial counsel was 

ineffective for failing to amend the alibi notice prior to trial to remove the reference to 

Ms. Crowley. Attorney Stephen Molineux served as post-conviction counsel at the 

original-jurisdiction stage.

During an evidentiary hearing limited to the alibi-related claim, trial counsel 

testified that he had been retained by Appellee’s mother, Monique Shaw, who provided 

him with “a myriad of information” and assisted in coordinating with witnesses. N.T., 

April 5, 2018, at 30-31, 36 (depicting Mrs. Shaw as the “point person” in communicating 

with Ms. Wynn and Ms. Crowley). Counsel related that Appellee had said that he was 

with Ms. Crowley in the afternoon of November 30 from around 4:00 p.m. to 5:30 p.m. 

Consistent with his explanation to the jurors at trial, counsel explained that this was 

significant since Commonwealth witnesses placed the perpetrators in Darby during this 

time period. See id. at 32-33, 52, 55-56. Although counsel indicated that he met with 

Ms. Wynn several times prior to trial, he acknowledged that he had never met with Ms. 

Crowley. See id. at 35, 51. But, according to counsel, he always expected Ms. Crowley

to testify, and again, was depending upon Monique Shaw to produce the witness. See 

id. at 37, 40-41, 52 (“I essentially relied on Mrs. Shaw -- okay.”), 53 (“I mean she 

delivered April [Wynn] and I expected Mrs. [Crowley] to be produced.”). 

At some point, however, counsel remembered that “there may have been a 

conversation with Monique Shaw that Mrs. -- something to the effect that there may 

have been some issue concerning Mrs. Crowley -- her inability to get in touch with 
[J-95-2020] - 6

her[.]” Id. at 38; see also id. at 41 (“[I]t’s coming back to me -- that [Mrs. Shaw] couldn’t 

get in touch with Devon [Crowley]”). Counsel maintained, however, that he had never 

been told in advance of trial that Ms. Crowley wouldn’t appear or cooperate. See id. at 

51-52. Had counsel known in advance that Ms. Crowley would not be available to 

testify, he said that he would have advised Appellee of the option to amend the alibi 

notice or leave it as is and “see what happened.” Id. at 39. 

On cross-examination, Attorney Molineux engaged in the following dialogue with 

trial counsel:

Q Now, . . you would agree that your Notice of Alibi . . . merely 

indicated that [Appellee] was with Devon [Crowley] and Ms. 

[Wynn]. Is that correct?

A Right. And somewhere in Philadelphia -- I mean it doesn’t 

say that they were together at the same time, that he was 

with these women at the same time. It just says that he 

wasn’t --

Q You would agree it says he was with them. Would that be 

accurate?

A He was with them. Right.

Q In Philadelphia at the time of the alleged commission of this 

crime?

A Let me just make sure. Yes. That -- it says that they -- that 

[Appellee] was with them and they were in Philadelphia and 

not in Darby at that address at the time of the alleged 

assault. Yes. That’s what it says.

Id. at 49-50 (emphasis added). This is the first instance in which counsel seems to 

have apprehended the notice’s clear import in depicting that Appellee, Ms. Wynn, and 

Ms. Crowley all were together at the time of the shooting. 
[J-95-2020] - 7

Maintaining that there was no need to amend the alibi notice, trial counsel also 

reiterated that:

I thought it was error to permit the alibi notice to be used by 

the Commonwealth to impeach the witness, April [Wynn], 

where she would have to explain what I wrote. . . . I didn’t 

agree that I could impeach you or [Appellee] or anybody else 

unless it was their statement. You know, I can’t impeach it 

with my statement. That was always my understanding. 

That’s still my understanding.

Id. at 57.

Attorney Molineux also presented Mrs. Shaw as a witness at the PCRA hearing. 

She explained that both Ms. Wynn and Ms. Crowley simultaneously maintained 

romantic relationships with Appellee. See id. at 15. According to Mrs. Shaw, 

substantially in advance of trial, Ms. Crowley “was recanting what she was saying,” and 

“[s]he was saying that she wasn’t going to testify.” Id.2 Mrs. Shaw also indicated that 

she conveyed this information to trial counsel. See id.

The PCRA court denied relief on the post-conviction petition, and Appellee 

appealed. Upon the PCRA court’s direction to file a statement of matters complained of 

on appeal under Rule of Appellate Procedure 1925, Attorney Molineux filed a statement

raising several challenges. However, the statement omitted the claim that had been the 

sole predicate for the post-conviction evidentiary hearing, namely, the alibi-related 

attack on the stewardship of trial counsel.

This claim, nevertheless, was advanced in the appeal proceedings after a 

substitution of counsel, as a component of a layered ineffectiveness claim alleging 

ineffectiveness on the part of trial counsel (for failing to amend the alibi notice) and

 

2 As the inquiries turned to an explanation for Ms. Crowley’s change of heart, the 

Commonwealth lodged a hearsay objection, which was sustained. See id. at 16.
[J-95-2020] - 8

Attorney Molineux (for failing to preserve the alibi-related claim of ineffective assistance 

on the part of trial counsel).3 The Superior Court credited this claim and reversed, 

vacated the judgment of sentence, and remanded the matter for a new trial. See 

Commonwealth v. Shaw, 214 A.3d 283 (Pa. Super. 2019). 

In opposing relief, the Commonwealth had asserted both that this claim was 

waived and that it was barred by Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 

2014) (en banc), which held that “[c]laims of PCRA counsel’s ineffectiveness may not 

be raised for the first time on appeal.” Id. at 20. Regarding waiver, the Superior Court 

observed that the appellate proceedings presented the first opportunity for Appellee to 

raise a claim that arose after the filing of the notice of appeal.4 As to Henkel, since that 

case involved the performance of PCRA counsel at the original-jurisdiction stage and 

not of appellate post-conviction counsel, the intermediate court reasoned that its holding 

did not apply. See Shaw, 214 A.3d at 293. The panel then proceeded to apply the 

criteria governing claims of deficient attorney stewardship at both the original-jurisdiction 

and appellate levels. See supra note 1.5

 

3 The technique for “layering” ineffectiveness claims -- which is necessary to overcome 

waiver in some contexts -- is discussed in Commonwealth v. McGill, 574 Pa. 574, 586-

90, 832 A.2d 1014, 1021-23 (2003).

4 See Shaw, 214 A.3d at 293 (explaining that Appellee “had no opportunity to raise that 

claim before the PCRA court, practically or theoretically, as the alleged ineffectiveness 

did not occur until after the PCRA court was deprived of jurisdiction to modify or 

otherwise rescind its order denying relief”); id. (elaborating that, when the Rule 1925(b) 

statement was filed, Attorney Molineux “was acting as appellate counsel, not PCRA 

counsel, even though he previously served as [Appellee’s] PCRA counsel”).

5 To succeed on an ineffectiveness claim, a petitioner must establish that: the 

underlying legal claim has arguable merit; counsel had no reasonable basis for her 

action or inaction; and the petitioner suffered prejudice as a result. See Commonwealth 

v. Pierce, 515 Pa. 153, 158–60, 527 A.2d 973, 975–76 (1987).
[J-95-2020] - 9

With respect to trial counsel’s performance, the Superior Court explained that the 

alibi notice counsel had submitted failed to reflect his own contemporaneous 

understanding of the circumstances. See Shaw, 214 A.3d at 294 (“The notice indicated 

that [Appellee] was with both Crowley and Wynn at the time of the offense, whereas trial 

counsel was told that [Appellee] was with Crowley first, and then with Wynn at a later 

time that day.”). The intermediate court further criticized trial counsel for failing to 

interview Crowley and to amend the alibi notice “to reflect the actual nature of 

[Appellee’s] alibi claim and that Crowley was not willing to provide an alibi.” Id.

Additionally, the panel could discern no reasonable basis to justify trial counsel’s 

inaction. Although counsel expressed a belief that an alibi witness could not be crossexamined with an alibi notice, the court referenced its own prior decisions which it read 

for the proposition that “it is well-established that an alibi notice can be used for 

impeachment purposes.” Id. (citing Commonwealth v. Thomas, 394 Pa. Super. 316, 

322, 575 A.2d 921, 923-24 (1990), and Commonwealth v. Hill, 378 Pa. Super. 562, 567, 

549 A.2d 199, 202 (1988) (emphasis in original)). The panel also highlighted that, when 

an alibi notice is withdrawn prior to trial, it cannot be subsequently used as evidence of 

a defendant’s untruthfulness. See id. at 295 (citing Commonwealth v. Alicea, 498 Pa. 

575, 580, 449 A.2d 1381, 1384 (1982)). 

In this portion of its analysis, the Superior Court expressed its disapproval of 

counsel’s testimony that he had refrained from amending the alibi notice, since he had 

hoped that Ms. Crowley would appear at trial to testify on Appellee’s behalf. In this 

regard, the court returned to its criticism of counsel’s reliance on Appellee’s mother as 

the sole interface with Ms. Crowley. See Shaw, 214 A.3d at 295. In any event, the 

court reiterated, counsel should have been aware from the outset that the content of the 

notice was inaccurate in indicating that Appellee was with Ms. Crowley and Ms. Wynn at 
[J-95-2020] - 10

the same time. The court also restated its position that counsel’s disbelief that the alibi 

notice could be used to impeach an alibi witness was contrary to law. See id.

In terms of prejudice, the Superior Court explained that the identities of the coperpetrators of the crimes in issue were contested in the case. Further, the 

intermediate court observed: there was at least some evidence that the victim’s 

identification of Appellee was not credible; there was no physical evidence corroborating 

the victim’s identification testimony; and no other witnesses identified Appellee as a 

perpetrator. Thus, the court reasoned that, if believed by the jury, Ms. Wynn’s 

testimony might have produced a reasonable doubt in a juror’s mind. Indeed, the panel 

continued, the circumstances were particularly prejudicial given that the inaccuracies in 

the alibi notice were solely the fault of trial counsel. See id. at 296.

Turning to the tier of the ineffectiveness analysis centered on Attorney Molineux’s 

stewardship, the court reasoned that the arguable merit prong was “established by the 

merit of the underlying ineffectiveness claim concerning trial counsel’s alleged 

ineffectiveness.” Id. at 293. As to the reasonable-basis aspect, the court opined, 

because Attorney Molineux litigated only the alibi-related claim during the PCRA 

hearing, it could ascertain no reasonable grounds to support a subsequent 

abandonment of that claim. Additionally, according to the panel, nothing occurred 

during the course of the post-conviction hearing demonstrating a reason to jettison the 

claim for any purpose, strategic or otherwise. See id. at 293-94.

Finally, the court found the prejudice to be obvious, in that the deficient 

stewardship caused the waiver of a meritorious claim. See id. at 294.

Appeal was allowed to consider several issues raised by the Commonwealth, 

including whether a claim of ineffective assistance of post-conviction counsel may be 

properly raised for the first time in the proceedings before an appellate court.
[J-95-2020] - 11

II. Arguments and Analysis

A. Waiver

Throughout its brief, the Commonwealth contends that Appellee waived any 

challenge to Attorney Molineux’s stewardship by failing to raise such a claim in the Rule 

1925 statement. The Commonwealth invokes Rule of Appellate Procedure 302(a), 

which prescribes that “[i]ssues not raised in the lower court are waived and cannot be 

raised for the first time on appeal,” and references a plethora of cases addressing 

preservation of claims and issues for judicial review. See Brief for Appellant at 20-21.

Consistent with the Superior Court’s analysis, however, we find that the waiver 

doctrine does not pertain. Significantly, the claim of ineffective assistance on the part of 

Mr. Molineux first arose upon his filing of the Rule 1925 statement omitting the alibirelated claim. It would certainly be unreasonable to apply issue preservation 

requirements to penalize a post-conviction petitioner because his attorney didn’t 

recognize and raise a claim of his own ineffectiveness contemporaneously with the 

lawyer’s own misstep. Moreover, this Court has enforced a general rule prohibiting 

attorneys from challenging their own stewardship. See, e.g., Commonwealth v. 

Koehler, 614 Pa. 159, 132-33, 36 A.3d 121, 132 (2012). 

The Commonwealth makes a legitimate point that Rule 302(a) says that issues 

that are not raised in the lower court cannot be raised for the first time on appeal. But 

the rule and the supportive cases provided by the Commonwealth are explicitly tied to 

the issue-preservation concern, which cannot reasonably be applied here. 

B. Ineffective Assistance of PCRA Counsel at the Original-Jurisdiction Stage

Separate and apart from waiver, however, the Commonwealth invokes Henkel. 

The Henkel opinion, authored by Judge Bowes, presents a studied, in-depth review of 
[J-95-2020] - 12

this Court’s decisions establishing that, “claims of PCRA counsel’s ineffectiveness may 

not be raised for the first time on appeal.”6

The Henkel court observed that post-conviction petitioners have a rule-based 

right to effective assistance of counsel, extending throughout any appeal proceedings. 

See Henkel, 90 A.3d at 22 (citing, inter alia, Pa.R.Crim.P. 904(C), (F)(2), and 

Commonwealth v. Jones, 572 Pa. 343, 364, 815 A.2d 598, 611 (2002) (plurality)). The 

court proceeded to summarize this Court’s divided opinions, over the years, delineating 

how that right is to be redressed. The position that claims of ineffective assistance of 

counsel may be raised in appeal proceedings reached a high point in the plurality 

decision in Ligons, 601 Pa. 103, 971 A.2d 1125, authored by Justice Baer and joined by 

this author (in relevant part) and Justice Todd. Justice Baer emphasized that permitting 

petitioners to advance these claims on appeal was the only way to enforce the right to 

effective PCRA counsel, given that future post-conviction proceedings would be barred 

by the PCRA’s one-year time limitation. See id. at 128-29, 971 A.2d at 1139-40.

On the other hand, the Henkel court explained, various Justices took the position 

that PCRA court supervision serves as sufficient protection for petitioners’ right to 

effective collateral counsel. See, e.g., id. at 161, 971 A.2d at 1159 (Castille, C.J., 

concurring). These Justice stressed the legislative concern for the finality of judgments. 

See id. at 174, 971 A.2d at 1167 (“[T]he notion that there must be some formalized, 

PCRA-like procedure for vindication of claims of PCRA counsel ineffectiveness, if taken 

 

6 Henkel, 90 A.3d at 20 (citing Commonwealth v. Jette, 611 Pa. 166, 186 n.14, 23 A.3d 

1032, 1044 n.14 (2011); Commonwealth v. Hill, 609 Pa. 410, 432 n.17, 16 A.3d 484, 

497 n.17 (2011); Commonwealth v. Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4

(2009); Commonwealth v. Colavita, 606 Pa. 1, 32 n.12, 993 A.2d 874, 893 n.12 (2009); 

Commonwealth v. Ligons, 601 Pa. 103, 126-31, 971 A.2d 1125, 1138-41 (2009) 

(plurality); Commonwealth v. Potter, 619 Pa. 174, 174-75 58 A.3d 752, 752-53 (2012) 

(per curiam)).
[J-95-2020] - 13

to its logical conclusion, would require approval of an infinite series of collateral 

attacks.”). 

The Henkel opinion demonstrates that, ultimately, the latter position has 

prevailed in the ensuing decisions of this Court, which are referenced in footnote 6 

herein and discussed at length in Henkel. See Henkel, 90 A.3d at 25-29. The current 

state of the law, then, is just as the Henkel court characterized it and the 

Commonwealth presently argues -- claims of ineffective assistance of originaljurisdiction post-conviction counsel cannot be raised for the first time on appeal.7

C. Ineffective Assistance of Appellate, Post-conviction Counsel in Preparing a 

Rule 1925 Statement

We turn next to the Superior Court’s position that Henkel does not extend to 

claims of ineffective assistance of appellate post-conviction counsel. It is the 

Commonwealth’s position that the distinction between appellate and original-jurisdiction 

post-conviction counsel is one without a difference. In either event, the Commonwealth 

contends, concerns with maintaining the orderly development of claims through the 

original-jurisdiction process and honoring the legislative objective of promoting finality 

should predominate.

Appellee, for his part, stresses the fairness considerations. He argues that the 

right to effective assistance of counsel must be enforceable to be meaningful, and that 

he had no opportunity to challenge Attorney Molineux’s performance before the PCRA 

 

7 Recently, appeal was separately allowed to address whether the present status quo 

on this point should be maintained. See Commonwealth v. Bradley, ___ Pa. ___, ___ 

A.3d ___, 2020 WL 7639150 (Dec. 23, 2020) (per curiam) (granting allocatur to 

consider: “Should the Court . . . accept the Superior Court’s request to devise a 

mechanism for the enforcement of the enforceable right to effective counsel in a first 

PCRA proceeding, when the current mechanism is not adequate to the enforcement of 

that important right?”).
[J-95-2020] - 14

court, since the asserted ineffectiveness occurred after that court was deprived of 

jurisdiction. Referencing Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012), 

Appellee also highlights that the federal courts have also drawn a distinction between 

original-jurisdiction and appellate counsel in addressing post-conviction matters. See

Brief for Appellee at 15 (citing Martinez, 566 U.S. at 16, 132 S. Ct. at 1320). Appellee 

explains that, in Martinez, the Supreme Court of the United States held that ineffective 

assistance of counsel in collateral review proceedings may sometimes establish cause 

for the default of a claim of ineffective assistance of counsel, thus overcoming the 

procedural default doctrine and enabling review in the federal courts. See Martinez, 

566 U.S. at 9, 132 S. Ct. at 1315. Appellee highlights that if he is denied review of his 

challenge to Attorney Molineux’s stewardship by this Court, he will have no recourse in 

federal court on account of Martinez’s limitation. 

Although it is inconsistent with the direction previously taken by a majority of the 

Court, we approve the Superior Court’s approach permitting a claim of deficient 

stewardship on the part of appellate post-conviction counsel for failing to raise and 

preserve a claim that was pursued before the PCRA court to be raised on direct appeal. 

As Appellee argues, the present circumstances are factually distinguishable from the 

line of decisions pertaining to original-jurisdiction post-conviction counsel, so that the 

doctrine of stare decisis and its exceptions need not be considered. See generally 

Oliver v. City of Pittsburgh, 608 Pa. 386, 395, 11 A.3d 960, 966 (2011) (explaining that 

the holding of a judicial decision is read against its facts) (citing Commonwealth v. 

McCann, 503 Pa. 190, 195, 469 A.2d 126, 128 (1983)). And we find it particularly 

appropriate for the claims to be addressed in state court, since although federal doctrine 

may compensate for the Court’s decisions in this line, federal review does not extend to 

the circumstances at hand. See id. at 16, 132 S. Ct. at 1320 (“The holding in this case 
[J-95-2020] - 15

does not concern attorney errors in other kinds of proceedings, including appeals from 

initial-review collateral proceedings” (emphasis added)).

D. The Need for Factual Development

We agree with the Commonwealth, however, that the matter should have been 

remanded to the post-conviction court for Appellee to be afforded the opportunity to 

create an evidentiary record to meet his burden of demonstrating the ineffectiveness, 

particularly in terms of the reasonable-basis criterion. See Commonwealth v. Koehler, 

___ Pa. ___, ___, 229 A.3d 915, 937 (2020) (explaining that the PCRA court is “the 

appropriate -- and, indeed, the only -- forum for the evidentiary and factual 

development”); BouSamra v. Excela Health, ___ Pa. ___, ___, 210 A.3d 967, 980 

(2019) (“It is not an appellate court’s function to engage in fact-finding.”). Although in 

very clear cases, an absence of reasonable strategy may be evident based on an 

attorney’s conduct alone, we do not view this as such a case. 

We also find that the Superior Court should have provided the post-conviction 

court with the opportunity to assess prejudice in the first instance. Clearly, trial counsel 

made an initial misstep by filing an alibi notice identifying a witness who counsel knew 

was not present with Appellee at the time of the crimes in question. In this regard, the 

notice is specifically designed to address “the place or places where the defendant 

claims to have been at the time of the alleged offense.” Pa.R.Crim.P. 567(A)(2) 

(emphasis added). To the degree that there would ever be any cause to include 

references to persons who were not with the defendant at the time of the crimes in 

question, the notice should clarify that the person is not a conventional alibi witness.

That said, the prosecutor did not belabor her reference to the notice, and trial 

counsel was permitted to offer his explanation that Ms. Crowley and Ms. Wynn were 

purporting to have been with Appellee at different times. Although certainly it is possible 
[J-95-2020] - 16

that the jurors relied on the notice to discredit the defense, again, it is most appropriate 

for the PCRA court to pass, in the first instance, on whether there is a reasonable 

probability that the outcome of Appellee’s trial would have been different had counsel 

correctly handled the alibi notice. See, e.g., Commonwealth v. Chmiel, 612 Pa. 333, 

362, 30 A.3d 1111, 1127-28 (2011).

 

E. The Use of an Alibi Notice to Cross-Examine Defense Witnesses

Finally, because the underlying circumstances involve the use of an alibi notice 

to cross-examine an alibi witness in a case in which the defendant did not testify on his 

own behalf, we take this opportunity to reinforce that our decision should in no way be 

read to endorse the Superior Court’s approval of such practice. The Rules of Criminal 

Procedure authorize cross-examination of the defendant concerning an alibi notice 

when the defendant choses to testify. See Pa.R.Crim.P. 567(G). While we need not 

definitively resolve the matter here, one can read the rule, by implication, to withhold 

approval for cross-examination with an alibi notice when the defendant elects not to 

testify, which is the prevailing approach in many other jurisdictions. See Simms v. 

State, 4 A.3d 72, 87-88 (Md. Ct. Spec. App. 2010) (collecting cases). Indeed, a 

contrary practice raised concerns about impingement on a defendant’s rights under the 

Fifth Amendment to the United States Constitution. See id. at 89.

The order of the Superior Court is vacated, and the matter is remanded to the 

PCRA court, via the intermediate court, for further proceedings consistent with this 

opinion.

Justices Baer, Todd, Donohue, Dougherty and Wecht join the opinion.

Justice Mundy files a dissenting opinion.